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First details on EC data protection action against UK revealed

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Details of the European Commission's objections to the Data Protection Act (DPA) have been revealed for the first time. A document has been published outlining why the Commission thinks the DPA fails to implement the EU's Data Protection Directive.

The information is contained in a Commission response to a four-year-old freedom of information request by privacy and data protection specialist Chris Pounder. Pounder was only sent the material after the European Ombudsman intervened.

It was already known that the Commission has objected to the DPA, saying that it fails to implement 11 of the Directive's 34 articles. The Commission is taking infringement proceedings against the UK based on its claims that the DPA fails to implement articles 2, 3, 8, 10, 11, 12, 13, 22, 23, 25 and 28 of the Directive.

The document sent to Pounder gives a small amount of detail on each of those 11 sections.

"Article 12 of the Directive gives data subjects the right to check the accuracy of their data, ensure that the data are being kept up-to-date, and have their data rectified, erased or blocked if necessary," said the Commission's explanation (five-page/168KB PDF). "The Data Protection Act, however, appears to confer upon the courts a discretion to grant or refuse applications made by data subjects in this regard."

The document said that the Commission also objected to the way that the DPA appears to "narrow the scope of non-material damage", impacting on the compensation that people can be awarded for damage resulting from data-protection law breaches.

It also said that it had concerns about whether or not "the supervisory authority" – meaning the Information Commissioner's Office – has sufficient powers.

The Commission is challenging not only the Government's interpretation of the Directive but also that of the courts. It said that it had concerns about a ruling in the case of Michael Durant, who tried but failed to access information about himself held by the Financial Services Authority.

"The issue regarding Article 2 concerns the definition of 'filing system', and the interpretation of this definition in the judgment in the 'Durant' case, which appeared to be narrower than that in the Directive," said the document.

The Commission also has concerns about what information people can demand from organisations about themselves; about whether information about criminal offences is treated differently to other information; and about the way in which organisations' assessment of third countries' data-protection systems is monitored.

Pounder was sent the information after a long process, in which he had enlisted the help of the European Ombudsman, who recommended that the Commission give him "summary information". The initial request for information was made in April 2007.

"The attachment to this blog does not comprise state secrets," Pounder said in a blog post detailing the results of his enquiries. "In 'liberating' these details, the Commission has required me to exhibit an obsessive behaviour on the autistic spectrum; they have delayed wherever possible, required me to endlessly chase them up, and provided bogus arguments in order to stop the release of these details," he wrote.

"When reading this list, remember these were the deficiencies that were identified by the Commission in 2004 following [the Durant case]," he wrote. "Quite frankly, it is unacceptable for the detail of this list of problems to have been kept secret for seven years."

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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